Police v Fialelei [2018] WSSC 102 (7 September 2018)

SUPREME COURT OF SAMOA
Police v Fialelei [2018] WSSC 102

Case name:	Police v Tupai Fialelei
Citation:	[2018] WSSC 102
Decision date:	7 September 2018
Parties:	POLICE v TUPAI FIALELEI FIALELEI male of Faatoia & Aopo Savaii.
Hearing date(s):
File number(s):	S990/18 & S988/18.
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Accordingly convicted and sentenced as follows: (a) Possession of methamphetamine – convicted and sentenced to 16 weeks imprisonment less time remanded in custody; and (b) Possession of utensils – convicted and sentenced to 8 weeks imprisonment, to be served concurrently. - On your release, you are will be under the supervision of the Probation Service for 6 months on the following conditions: (a) You are prohibited from any contact whatsoever whether in person, by phone or any other electronic, written or other means and whether directly or indirectly with Aitken Keil or Richard Burgess; and (b) you are to attend programs as directed by the Probation Service. -
Representation:	Q Sauaga for prosecution U. I Sapolu for the Accused
Catchwords:
Words and phrases:	possession of 0.4 grams of methamphetamine, possession of utensils namely three glass pipes, search warrant on premises,
Legislation cited:
Cases cited:	(Police v Tevaga [2016] WSSC 38 (21 March 2016); Police v Kamisi (Unreported) WSSC 11 May 2018), Police v Barlow [2017] WSSC 163 (28 November 2017), Her HonourTuala-Warren J, R v Fatu[2006] 2 NZLR 72 and Police v Patau [2013] WSSC 120.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TUPAI FIALELEI FIALELEI male of Faatoia & Aopo Savaii.
Accused

Counsel:
Q Sauaga for prosecution
U. I Sapolu for the Accused

Sentence: 7 September 2018

S E N T E N C E

1. Tupai Fialelei, you appear for sentence on one charge of possession of 1.2 grams of methamphetamine which carries a maximum penalty of up to life imprisonment and one charge of possession of utensils, namely three glass pipes that carries a maximum penalty of up to 7 years imprisonment.

The Offending:

2. According to the Summary of Facts accepted through your counsel, on the 27th September 2017, Police executed a search warrant on premises located at Faatoia occupied by you. In the course of the execution of the search warrant, you were searched and a plastic bag containing methamphetamine was recovered from inside the pocket of your pants. The search also recovered 3 glass pipes.
3. The weight of the methamphetamine together with the plastic bag was 1.2 grams. Outside of the plastic bag and on its’ own, the methamphetamine weighed 0.4 grams. With the consent of Prosecution, I sentence you on the basis of your possession of 0.4 grams of methamphetamine.

The Accused:

4. You are a 45 year old male of Faatoia and Aopo Savaii. You own and operate a taxi business and are a taxi driver. According to your Pre-Sentence Report, you have lived and worked both in New Zealand and Samoa and returned to Samoa in 2009. You appear to have had a positive work life over the years. You own and operate the Sivamua Taxi Stand, Moto’otua.
5. You are separated from your wife with whom you have 3 children. You are now in a de-facto relationship from which you have a son.
6. You provide for your family including your siblings and your brother has spoken very highly of you and of his surprise at your involvement with drugs.

Aggravating factors:

7. Prosecution submits that the aggravating features of your offending are (a) the effect of the dissemination of drugs on the community; (b) the quantity of methamphetamine in your possession; (c) that you are a consumer of methamphetamine and (d) your attempt to conceal the banned substances and throwing of the glass pipe out of a window of the house.
8. I do not view these as aggravating factors. The Summary of Facts and the material before me do not satisfy me that you possessed the drug for any commercial purpose and you were therefore not responsible for disseminating the drugs into the community. The quantity of methamphetamine in your possession of 0.4 grams is also a small amount and in itself is not an aggravating feature of your possession. I accept that you are a consumer but that in itself in my respectful view is also not aggravating. There was also no fact set out in the Summary of Facts that shows that you attempted to conceal the methamphetamine or the glass pipes. I therefore do not accept concealment as relevant or aggravating.
9. What I do however consider aggravating to your offending is premeditation and the circumstances of your possession of methamphetamine. You told the Probation Service that the two persons arrested with you are persons with whom you allege you normally smoke ‘ice’ and they had returned to your house that morning to smoke the ice with you. Your possession of the glass pipes and ‘ice’ which you planned to smoke with your two so called friends was in your home and in which your 4 year old son present.
10. I do not count your prior conviction as personally aggravating as it was for different offending in 2013. You do not however get credit for prior good character due to your prior conviction.

Mitigating Factors:

11. The mitigation features personal to you is your early guilty plea, assistance to authorities and remorse. Counsel for the accused submits that a 30% deduction be allowed for assistance to authorities. Prosecution submit a 1/3 deduction. Neither counsel provided authorities. I accept that a meaningful deduction is appropriate and should be made. Should your assistance to authorities agreed through your counsel not be forthcoming after sentence, you may be recalled for sentence.

Discussion:

12. It has been recognized that illicit narcotics is a scourge in many societies and Samoa is becoming no exception (Police v Tevaga [2016] WSSC 38 (21 March 2016); Police v Kamisi (Unreported) WSSC 11 May 2018). In Police v Barlow [2017] WSSC 163 (28 November 2017), Her HonourTuala-Warren J cited from the R v Fatu[2006] 2 NZLR 72as follows:

“Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side effects. It induces aggressive and irrational behaviour, and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved.”

13. In your Pre-Sentence Report Tupai, you candidly acknowledged that you have used ‘ice’ for almost two years and that you have tried to quit. It is a highly addictive drug so once a person starts use, it is difficult to stop. You said that when arrested, you were with two individuals you allege you smoke together with and your young son was at home with you.
14. It should be a matter of significant regret that your offending occurred in your home in the presence of your young son. By doing so, you have exposed your son to these substances and you risk ultimately leading him down that same path of drugs in later years. You must reflect on the possible consequences of your actions on your son and for his future.
15. You claim in your PSR that you started using ‘ice’ for strength and to stay awake for your job as a taxi driver. The possession and use of this narcotic is not the answer to staying awake or a source of strength and nor is it a solution to problems. It is a road to more problems both as a result of what the drug does to you physically and psychologically and because of the consequences for you personally if you are found in possession of it.
16. In all cases that have come before the Courts in Samoa involving methamphetamine, a deterrent sentence involving imprisonment is imposed. I do not propose to depart from that for the reasons set out in Police v Tevaga [2016] WSSC 38 and so as to deter not only you from future involvement with illegal narcotics but to also send a clear message to others that if you involve yourself with ‘ice’, you will most likely be imprisoned. For those found in possession of ice, even small quantities, the consequences are serious. For those who might consider using this highly addictive drug, you must consider the sentences imposed by the Courts, the risks that you face and the devastating effect this drug has on your health and life.
17. Your counsel has made submissions with reference to New Zealand sentencing authorities. There is a difference in approach between Samoa and New Zealand reflected in the different maximum penalties for possession methamphetamine including for personal use between Samoa and New Zealand, the sentencing tariffs imposed by the Courts and the intention of the Samoan Parliament in setting the maximum penalty of up to life imprisonment. It also reflects in my view the reality that in smaller countries such as Samoa, we are less able than better resourced health systems such as New Zealand to deal with a methamphetamine epidemic. Deterrence at present is an important part of sentencing for this offence to stop this drug from taking permanent root in the community.
18. In imposing a deterrent sentence however, I also take into account what your counsel has said as well as what you have told the Probation Service. In R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72, the sentencing bands established were in respect of the manufacture, supply and commercial purpose. This was recognized in Samoa in Police v Patau [2013] WSSC 120 and Police v Tevaga [2016] WSSC 38 (21 March 2016).
19. In sentencing you, I am satisfied that your possession of methamphetamine was for personal use. Taking into account the small quantity of methamphetamine in your possession and that you are not a dealer, manufacturer or importer of this drug, I will depart from the sentencing bands in R v Fatu (supra) as it does not apply (Police v Tevaga (supra).
20. Sentencing for possession of utensils has varied between non-custodial to lengthy custodial sentences. The sentences depend on the circumstances of each case, the number and type of utensils and whether the utensils formed part of other offending. In Police v Webber (supra) involving two glass pipes, an end sentence of 3 months imprisonment was imposed.
21. I adopt totality in sentencing principles and possession of methamphetamine as the lead charge. Ordinarily, I would adopt 30 weeks imprisonment start point for sentence. However, due to the aggravating factor of your offending in the presence of your child and his exposure to this Class A drug by you, I add 4 weeks to that start point leading to 34 weeks start point. I deduct 4 weeks for your remorse, 8 weeks for assistance to Authorities and 6 weeks for your guilty plea. This leaves an end sentence of 16 weeks imprisonment.

Result:

22. You are accordingly convicted and sentenced as follows:

(a) Possession of methamphetamine – convicted and sentenced to 16 weeks imprisonment less time remanded in custody; and

(b) Possession of utensils – convicted and sentenced to 8 weeks imprisonment, to be served concurrently.

23. On your release, you are will be under the supervision of the Probation Service for 6 months on the following conditions:

(a) You are prohibited from any contact whatsoever whether in person, by phone or any other electronic, written or other means and whether directly or indirectly with Aitken Keil or Richard Burgess; and

(b) you are to attend programs as directed by the Probation Service.

JUSTICE CLARKE